Winfield Capital Corp. v. Mahopac Auto Glass, Inc.

In an action to recover damages for breach of contract seeking additional rents, the plaintiff appeals from an order of the Supreme Court, Westchester County (Donovan, J.), dated November 30, 1992, which denied the plaintiff’s motion for summary judgment and granted the defendants’ cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff, as assignee of the rent due under a lease, brought the instant action against the defendants to recover additional rents allegedly due under the lease. The Supreme Court dismissed the action, based on the asserted defenses of waiver, laches, and equitable estoppel, because the landlord had not given the tenant notice of the additional amounts due prior to February 1 of each year, as required by the lease.

While we agree that dismissal is warranted, we base our decision on the landlord’s failure to satisfy a condition precedent to the tenant’s obligation to pay the additional rents. The relevant portion of the subject lease is similar to that in Woodlaurel, Inc. v Wittman (199 AD2d 497), in which the landlord sought to recover additional rents under a fax escalation clause in the lease. An examination of the record in Woodlaurel reveals that the lease required the landlord to furnish the tenant with a copy of the tax bill, and that the tenant "shall” then pay the increase in the real estate tax. In that case, we affirmed the denial of the landlord’s motion for summary judgment, based, inter alia, on the existence of an issue of fact as to whether the landlord performed the condition precedent to the tenant’s obligation to pay the additional rent by providing proper notice of the tax increases.

As in Woodlaurel, the lease in this case, the relevant portions of which are set forth in the dissent, established a condition precedent to the tenant’s duty to pay additional rent. The plaintiff does not dispute the tenant’s allegation that the landlord failed to give notice of the amounts due for any of the years in question (cf., Woodlaurel, Inc. v Wittman, supra). We therefore conclude that the Supreme Court properly granted the defendants’ cross motion for summary judgment. Sullivan, J. P., Copertino and Santucci, JJ., concur.